Eldred V Ashcroft Lessig Oral Arguement

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IN THE SUPREME COURT OF THE UNITED STATES

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ERIC ELDRED, ET AL., Petitioners

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v.

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JOHN D. ASHCROFT, ATTORNEY GENERAL

No. 01-618

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Washington, D.C.

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Wednesday, October 9, 2002

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The above-entitled matter came on for oral

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argument before the Supreme Court of the United States at

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10:03 a.m.

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APPEARANCES:

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LAWRENCE LESSIG, ESQ., Stanford, California; on behalf of

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the Petitioners.

THEODORE B. OLSON, ESQ., Solicitor General, Department of

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Justice, Washington, D.C.; on behalf of the

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Respondent.

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C O N T E N T S

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ORAL ARGUMENT OF

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LAWRENCE LESSIG, ESQ.

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On behalf of the Petitioners

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ORAL ARGUMENT OF

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THEODORE B. OLSON, ESQ.

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On behalf of the Respondent

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REBUTTAL ARGUMENT OF

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LAWRENCE LESSIG, ESQ.

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PAGE

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On behalf of the Petitioners

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P R O C E E D I N G S

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(10:03 a.m.)

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CHIEF JUSTICE REHNQUIST:

We'll hear argument

now in Number 01-618, Eric Eldred v. John D. Ashcroft.

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Mr. Lessig.

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ORAL ARGUMENT OF LAWRENCE LESSIG

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ON BEHALF OF THE PETITIONERS

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MR. LESSIG:

Mr. Chief Justice, may it please

the Court:

Petitioners are before you this morning

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challenging Congress's 1998 Sonny Bono Copyright Term

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Extension Act, which extended the term of subsisting and

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future copyrights by 20 years.

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blanket extension of existing terms exceeds Congress's

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power under the Copyright Clause and it violates the First

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Amendment.

Petitioners submit such a

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Now, the Government has responded to

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petitioners' argument in a way that betrays a simple but

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fundamental confusion.

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petitioners had advanced a general theory of the Copyright

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Clause, or a general constraint under which Congress must

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operate.

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an enumerated power.

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Congress to exercise its copyright authority.

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have advanced a particular interpretation of the only

The Government has argued as if

That is a mistake.

This case is about limits to

It's not about general power of

Petitioners

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express limits in the Copyright Clause designed to give

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those limits meaning.

QUESTION:

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Mr. Lessig, I'll tell you what

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bothers me about your position, and that is that Congress

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has extended the term so often through the years, and if

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you are right, don't we run the risk of upsetting previous

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extensions of time?

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that began with the very first act.

I mean, this seems to be a practice

MR. LESSIG:

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Justice, we do not believe that the

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very first act extended terms at all.

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technically, which for a lawyer means speaking accurately,

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the 1790 act did not extend a Federal term.

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granted a term for works that already existed in precisely

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the pattern that the English parliament had done in the

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Statute of Anne in 1710, and that the English parliament

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did with monopolies, general monopolies in the statute

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of --

QUESTION:

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extensions since.

MR. LESSIG:

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QUESTION:

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The 1790 act

But there have been a number of

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Speaking

That's right.

Even if you can get over the first

hurdle.

MR. LESSIG:

That's right.

That's the important

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hurdle, and we'd like to jump that first, but the other

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ones, Justice, you're right, in 1831 and in 1909 Congress

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extended terms in a way that is inconsistent with the

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strongest form of the test that we have advanced.

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extensions, however, were never challenged in any court

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and certainly not considered by this Court.

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QUESTION:

Those

Well, doesn't that itself mean

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something, Mr. Lessig?

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challenged, perhaps most people, and perhaps everybody

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felt there was no basis for challenging them.

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MR. LESSIG:

The fact that they were never

Well, Mr. Chief Justice, it's

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absolutely true that this case is here because of a

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fundamentally important changed circumstance that makes

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the Framers' limitations on the Copyright Clause much more

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significant.

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this Court has been pointed to changed circumstances as a

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reason to reaffirm the Framers' values, because for most

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of this period, Mr. Chief Justice, the only people who

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were regulated by copyright law under the Copyright Act

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would have been commercial publishers, primarily, and now

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for the first time the scope of this exclusive right has

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expanded because of the changed technology of the Internet

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to reach an extraordinarily broad range of creativity that

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never would have been imagined before.

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This is the first time I can remember where

Now, it's not the case that the earlier

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extensions were not questioned on constitutional grounds.

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In fact, Melville Nimmer, in the consideration of the 1976

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act, suggested they were plainly under --

QUESTION:

Well, I'm talking about court

challenges, not academic challenges.

MR. LESSIG:

That's right, there is no court

challenge.

QUESTION:

Mr. Lessig, your theory, as I

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understand it, regardless of changed circumstances or not,

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your basic theory, which on your argument would have been

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appropriate at any time historically, is that there has at

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least got to be the possibility of a kind of a causal

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connection between the extension and the promotion or

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inducement for the creation of some subsequent work, but

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why is that any more plausible a reading of the Promotion

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Clause than simply a reading that says the Promotion

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Clause requires that there be a general scheme in place,

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which overall tends to promote or induce, and part of one

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aspect of that scheme can be that the -- that at the

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discretion of Congress the period of protection is

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extended from time to time?

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Why do you require -- why do you say the clause has

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got to be read by this kind of specific causation theory

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as opposed to a kind of systemic theory of promotion?

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MR. LESSIG:

Justice Souter, the reason is

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exactly related to the point I began with, that this is a

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case about limits and not about discretion.

If it's not

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the case that this Court --

QUESTION:

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No, but that's -- I mean, that's the

issue in the alternative reading.

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MR. LESSIG:

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QUESTION:

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That's right.

And why is it a limit case, rather

than a discretion within a general scheme kind --

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MR. LESSIG:

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QUESTION:

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MR. LESSIG:

That's right.

-- of clause?

Because if this Court does not

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adopt a reading of the form we've offered, then there is

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no limit to the ability of Congress to extend subsisting

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terms.

QUESTION:

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Do you say the same thing for scope?

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This case is about duration, but Congress from time to

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time -- in fact, you mentioned --

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MR. LESSIG:

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QUESTION:

Yes.

-- the expanded applications of

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copyright, and Congress itself extends the scope from time

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to time.

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MR. LESSIG:

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QUESTION:

That's right.

Would you make, as far as, say,

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translation rights that didn't exist before, the same

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argument?

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MR. LESSIG:

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QUESTION:

I --

Why -- or -- and if you wouldn't, why

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not?

MR. LESSIG:

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I -- no, Justice Ginsburg, we would

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not, and the reason is again related to the method we have

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adopted to interpret "limited times."

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that "promote the progress of science" is a general and

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independent constraint on the Copyright Clause authority.

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We've said it must be looked to to interpret the scope of

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"limited times," and unless retrospective extensions are

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forbidden, it will eviscerate the meaning of "limited

We have not said

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times."

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of exclusive right, nor in the context of the power to

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secure.

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That does not occur in the context of the scope

If that's --

QUESTION:

Could we then go back to Justice

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O'Connor's question?

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agree with you, does that mean that we would, in

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principle, have to hold the 1976 extension

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unconstitutional?

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term from 28 years renewable once, to life of the author

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plus 50 years.

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author plus 70.

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theory, how could the former not be?

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is, the chaos that would ensue would be horrendous.

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To make that very specific, if we

I mean, in 1976, Congress extended the

Now they're extending it life of the

If the latter is unconstitutional on your

MR. LESSIG:

And if the former

Justice Breyer, under our theory as

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we've advanced it, you're right; the 1976 act would be

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unconstitutional.

Whether this Court would apply such a

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holding in this case to that act is a question that would

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have to be resolved under the retrospective --

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QUESTION: theory, then.

Maybe we ought to find another

Is there any --

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(Laughter.)

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MR. LESSIG:

Justice, the theory, which would

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advance the aim of limiting times in a way that is

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enforceable, is only applicable in the case that we

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brought before you here to the '98 act, and would not

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necessarily be applicable under the '76 act for the

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reasons the Government has offered.

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this argument, but the Government has offered an argument

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in a parallel case that suggests a distinction between the

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'76 act and this case.

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It's been grounded in their claim that the treaty power

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creates some special power.

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claim, but the point is there are a number of issues that

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the '76 act --

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QUESTION:

We would not advance

That's not been briefed here.

We wouldn't advance that

In essence, you think it's at least

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arguable that the '76 act had various positive aspects to

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it in terms of the purpose of the Copyright Clause that

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this act lacks?

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MR. LESSIG:

That's certainly true, and we also

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believe that, for the reasons averted to by amicus AOL in

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this case and the reasons you've just suggested, the

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disruption in that context under the retrospectivity cases

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Ryder and Reynoldsville Casket Company would be sufficient

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to fit it within the, quote, "severe disruption exception"

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to the retrospectivity.

QUESTION:

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Well, I suppose implicit in the

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argument that the '76 act, too, should have been declared

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void, and that we might leave it alone because of the

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disruption, is that for all these years the act has

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impeded progress in science and the useful arts.

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I just

don't see any empirical evidence for that.

MR. LESSIG:

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Justice, we are not making an

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empirical claim at all.

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claim hangs upon the empirical assertion about impeding

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progress.

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limit necessary to assure that what would be an

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effectively perpetual term not be permitted under the

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copyright laws.

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Nothing in our Copyright Clause

Our only argument is, this is a structural

QUESTION:

Well, perhaps I misunderstood.

I

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thought the whole thrust of your argument was that there

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is a great First Amendment force here that's being

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silenced, that's being thwarted.

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MR. LESSIG:

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QUESTION:

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Well, the thrust certainly --

I thought that's the whole

underpinning of your case.

MR. LESSIG:

It's certainly the case that we are

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asserting, in light of the changed circumstances, that the

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opportunity to build upon works within the public domain

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is a fundamental First Amendment interest, and that the

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First Amendment values, vital speech interest at stake of

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this case, is that the public domain be permitted as a

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source for cultivating work about our culture without

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unnecessary legal restriction.

QUESTION:

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Well, but you want more than that.

You want the right to copy verbatim other people's books,

don't you?

MR. LESSIG:

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We want the right to copy verbatim

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works that should be in the public domain and would be in

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the public domain but for a statute that cannot be

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justified under ordinary First Amendment analysis or under

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a proper reading of the limits built into the Copyright

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Clause.

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QUESTION:

Mr. Lessig, on your First Amendment

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argument I don't see where the retroactivity-prospectivity

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comes in, because -- I follow your argument under the

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Copyright Clause, but if you're saying that the time is

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too long, the public domain should get this stuff sooner

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rather than later, would you explain to me how your

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prospectivity-retrospective line fits into your First

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Amendment claim?

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MR. LESSIG:

Justice, we've argued that it would

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be inappropriate in this case for the Court to consider

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the prospective line until they decide whether the case,

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whether the prospective and retrospective is severable,

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and we submit it's an easy case to show that it's not.

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QUESTION:

On the First Amendment --

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MR. LESSIG:

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QUESTION:

Yes.

-- argument you're making that as, I

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take it, an argument independent of, it doesn't hang on

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your Copyright Clause argument.

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MR. LESSIG:

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QUESTION:

That's right.

I --

And so let's just take -- let's say

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that was your only argument in this case.

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tie into a retrospective-prospective distinction?

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MR. LESSIG:

How does that

Well, the strongest First Amendment

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argument is about the retrospective extension, because of

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a fundamental change that occurs when Congress extends

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subsisting copyrights, rather than when Congress

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legislates prospectively.

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When Congress legislates prospectively, it has

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no way to know who's going to benefit from its extension.

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It is simply evaluating what the term should be

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prospectively in a way that we presume this Court should

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presume is legitimate under the First Amendment.

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legislates retrospectively, it is, in effect, looking at

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particular authors and estates of authors who are before

When it

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Congress asking for this extension, and it's choosing

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between these particular authors and the public at large.

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Now, it may be that in exercising that choice in

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this case, Congress made an objective valuation of who

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would be in the best position to advance the interests of

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promoting the progress of science, or any original --

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QUESTION:

But you -- under your intermediate

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scrutiny test we would not be hypothesizing what might

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have been in Congress's mind.

Your First Amendment test

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is a stringent one.

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purpose, and the means that you use is necessarily tied to

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that purpose.

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you make the retroactive-prospective line work.

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You have to have an important

If you take that position, I don't see how

MR. LESSIG:

Well, the line comes from deciding

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what the First Amendment interest is, and if this Court

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heed the First Amendment interest off of this difference

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between selecting who gets the benefit of 20 years of

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extension and just simply legislating in a general way

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prospectively, then this Court could hold, with respect to

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the prospective, that it's not even necessary to raise the

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intermediate scrutiny in that context, but again, for

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Ashwander reasons we don't think that this Court should

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address the prospective aspect of the CTEA even under the

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First Amendment.

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QUESTION:

Even though Congress's pattern has

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been to treat all authors equally?

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that it's been prospective and retrospective is that

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people should be, people who hold copyrights should be

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subject to the same regime and not have some people who

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got their copyrights the week before the law passed

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treated differently than people who got it the week after.

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MR. LESSIG:

I mean, the reason

Well, Justice, that certainly is

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the reason the Government offers for this pattern.

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course, doesn't explain actually what Congress has done

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and, even in this case, when a work has passed into the

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public domain, then there is precisely the same

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week before/week after problem that you advert to, that

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extension does not extend to all subsisting works, it only

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extends to all subsisting copyrights.

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already drawn in the practice that Congress has adopted,

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but our point is, the only way to assure --

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QUESTION:

It, of

So that line is

But Congress has -- or, you're not

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disputing that Congress has always made these extensions,

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both retroactive and prospective?

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MR. LESSIG:

Well, in 1831 it did not.

In 1831

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it granted the benefit of its extension to a subset of all

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subsisting copyright holders.

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QUESTION:

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MR. LESSIG:

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QUESTION:

Let's stick with 1976.

In 1976 --

Because that was what you said --

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that's -- the pattern under the CTEA is identical to the

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one in the '76 act.

MR. LESSIG:

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That's absolutely right, yes.

So

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they have extended it to both.

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unless this Court draws a line about this extension, then

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for the reasons Judge Sentelle suggested below, there will

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be no limit to Congress's ability to --

QUESTION:

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But our argument is,

Judge Sentelle did not deal with the

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First Amendment, as far as I --

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MR. LESSIG:

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QUESTION:

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MR. LESSIG:

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QUESTION:

That's right.

-- recall.

That's right.

And so I'm asking you -- perhaps I'm

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missing it.

I haven't seen where you get the

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prospective-retrospective in connection with your First

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Amendment.

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years is an unreasonable -- is not necessary.

It seems that you're just saying there that 70

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MR. LESSIG:

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QUESTION:

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Yes.

And it doesn't serve an important

purpose.

MR. LESSIG:

Yes.

Precisely -- actually, we're

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not saying anything about the 70 years in this case even

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under the First Amendment, because we believe it's

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unseverable, but --

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QUESTION:

But I thought you were saying that if

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you accept the Copyright Clause argument, then you have a

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way, in effect, of devaluing the Government's claim of its

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important interest and important objective when you get to

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the First Amendment intermediate scrutiny analysis.

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Whereas if you don't accept the Copyright Clause claim,

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then, in order to make the First Amendment analysis we've

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simply got to say, well, gee, is the promotion of useful

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art and so on more important than the public domain, and

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can we say that that allows a distinction between 50 years

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and 70 years?

We're pretty much at sea, so I thought your

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Copyright Clause argument was necessary to give us some

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handle with which to deal with the First Amendment.

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MR. LESSIG:

Our Copyright Clause argument is

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certainly a way of framing why extensions of subsisting

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terms cannot be seen to promote the First Amendment

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interest of speech at all.

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QUESTION:

Okay.

Let's assume we don't -- for

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the sake of argument here, let's assume we don't accept

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the Copyright Clause argument.

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First Amendment argument in your brief?

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MR. LESSIG:

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QUESTION:

Do you have an independent

Yes, of course we do.

Okay, and it is -- tell me in a

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sentence or two what it is.

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where Justice Ginsburg is.

I mean, at that point I'm

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MR. LESSIG:

Yes.

The First Amendment argument

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we've argued in our brief is with respect to the

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retrospective extension, and the First Amendment argument

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is, that needs to --

QUESTION:

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No, but that's the Copyright Clause

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argument, and it seems to me you're saying, okay, we then

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apply that in First Amendment analysis, which allows us to

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make a coherent intermediate scrutiny argument.

If we don't accept the Copyright Clause

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retrospectivity argument --

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MR. LESSIG:

12

QUESTION:

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Yes.

-- then what is your First Amendment

argument?

MR. LESSIG:

That's right, I'm sorry, Justice.

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What I'm saying is not that it's the retrospectivity that

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makes the First Amendment argument troubling -- I mean,

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that drives our First Amendment argument.

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is, we have addressed the retrospective portion of CTEA,

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and so I'm saying in the retrospective portion of CTEA you

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would apply ordinary, intermediate First Amendment review,

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and you would ask --

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QUESTION:

All I'm saying

Well, this Court really has not -- if

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you say that the Copyright Clause is not violated, I don't

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think there are examples where this Court has then

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resorted to First Amendment analysis to invalidate the

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same act.

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MR. LESSIG:

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QUESTION:

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Well --

I mean, this would be quite a new

proposition.

MR. LESSIG:

Well, Justice O'Connor, the First

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Amendment is always an independent limitation on what

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otherwise would be legitimate exercises of congressional

8

authority, so this --

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QUESTION:

Yes, but the Framers seem to have

adopted these two things at the same time --

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MR. LESSIG:

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QUESTION:

13

MR. LESSIG:

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QUESTION:

That's right.

-- in effect.

That's right, and if --

And I think there are not examples

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that I can think of where we have said, well, we'll

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analyze it under the Copyright Clause, but if that

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fails we'll turn to the First Amendment.

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MR. LESSIG:

Justice, that's right.

If only we

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had the Framers' copyright before us, because of course,

20

again remember,the exclusive right the Framers spoke of

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was the right to print and publish.

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derivative rights, it didn't include the display rights,

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and it certainly --

24

QUESTION:

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Right.

It didn't include the

It has expanded very much,

and they also envisioned a very short term, and I can find

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a lot of fault with what Congress did here --

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MR. LESSIG:

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QUESTION:

That's right.

-- because it does take a lot of

4

things out of the public domain that one would think that

5

someone in Congress would want to think hard about.

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MR. LESSIG:

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QUESTION:

That's right.

But having done that, it's very

8

difficult to find the basis in the Constitution for saying

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it isn't a limited term.

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It's longer than one might think

desirable --

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MR. LESSIG:

12

QUESTION:

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MR. LESSIG:

Right.

-- but is it not limited?

Well, if it is limited, then there

14

is no limit to the ability of Congress to extend

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subsisting terms, and that fundamentally destroys the

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objective that the --

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QUESTION:

The rule against perpetuities might

18

jump in there at some point.

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(Laughter.)

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MR. LESSIG:

Right, and we submit the Framers

21

had something very different in mind than the rule against

22

perpetuities.

23

there is no limit to the ability to extend terms, and that

24

is precisely contrary to what the Framers had in mind when

25

they worried about this problem originally.

The point is, if this is permitted, then

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What was the problem they were solving?

It was,

as this Court stated in Graham --

QUESTION:

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Well, I could agree with you, in

4

terms of policy, that this flies directly in the face of

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what the Framers had in mind, absolutely.

6

violate the Constitution?

MR. LESSIG:

7

But does it

Well, if it flies in the face of

8

what the Framers had in mind, then the question is, is

9

there a way of interpreting their words that gives effect

10

to what they had in mind, and the answer is yes.

QUESTION:

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Well, you know, certainly what is

12

happening in the country today in the way of

13

congressional -- under the Commerce Clause is totally

14

different than what the Framers had in mind, but we've

15

never felt that that was the criterion.

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thought of, there weren't steamboats, there weren't

17

railroads.

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MR. LESSIG:

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QUESTION:

What the Framers

That's right.

We've said there was a general grant,

20

and that Congress was free to run with it in many

21

respects.

22

MR. LESSIG:

In many respects, Mr. Chief

23

Justice, but, as this Court has also said, there are

24

limits to what Congress can do under the Commerce Clause.

25

QUESTION:

But isn't --

20 Alderson Reporting Company 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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QUESTION:

Can I ask you about one of the

2

limits, just focusing on the Copyright Clause and the

3

progress of science and useful arts?

4

that -- is that limited to encouraging creativity by

5

authors and inventors, or does it also include the

6

distribution of materials that might not otherwise be

7

distributed, like old films and so forth?

MR. LESSIG:

8 9

In your view, does

We're happy to adopt a broader

interpretation of what promote the progress is about,

10

within the general framework that the Framers established

11

in light of the English practice, which was a quid pro

12

quo.

The ability to facilitate distribution --

QUESTION:

13

So that if the quid pro quo is that

14

we can facilitate distribution of some old film by an

15

additional monopoly grant, you'd think that's permissible?

MR. LESSIG:

16 17

upon the distribution. QUESTION:

18

So long as the grant is conditioned

So long as the grant --

In other words you could have --

19

right now, if Congress decides to have a law, and this law

20

is going to give copyrights in 1) the Bible, 2)

21

Shakespeare, 3) Ben Jonson, and the reason they do it is

22

that they think that that would lead publishers to produce

23

those and distribute them, and they're right, they will,

24

okay?

25

In your view, that's perfectly constitutional?

MR. LESSIG:

No, that's the view of the

21 Alderson Reporting Company 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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Government's, Justice Breyer.

2

QUESTION:

My view is --

Well, I thought that was the question

3

you were getting, and I thought you were saying -- I must

4

have misunderstood.

5

constitutional.

I thought you were saying that was

MR. LESSIG:

6

No.

What we were saying is, if

7

Congress wants to permit restoration of films, for

8

example, an issue that's been well briefed here, Congress

9

can say, if you restore the film, then the restoration

10

gets a copyright so long as it satisfies originality as

11

outlined in Feist, and it gets a copyright for a period of

12

time.

13

made clear that it could not extend copyrights to works in

14

the public domain.

15

but we stand on that as a way of understanding why this

16

Court --

17

But this Court's opinion in Graham and in Feist

QUESTION:

The Government doesn't concede that,

So your answer to Justice Stevens is

18

no, they cannot give a copyright purely for purposes of

19

dissemination to publishers, is that right?

20

MR. LESSIG:

21

QUESTION:

22

MR. LESSIG:

23

No.

Oh, all right.

They cannot give a copyright purely

for purposes of distribution to publishers.

24

(Laughter.)

25

MR. LESSIG:

They would need to satisfy all of

22 Alderson Reporting Company 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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the implied limitations that this Court has expressed in

2

the context of this, the most carefully limited clause in

3

Article I, section 8. QUESTION:

4

It is one of the --

Mr. Lessig, the clause says, Congress

5

shall, and suppose Congress decides in this expanded world

6

of ours that it's going to make certain changes and demand

7

other changes from our treaty partners.

8

well, the Germans led the fight for 70 years in the

9

European Union, we'll go with that, but we're going to

Suppose it says,

10

insist that they have a more expansive notion of, say, a

11

fair use.

12

of knowledge?

13

Now, why couldn't that fit within the promotion

MR. LESSIG:

Justice Ginsburg, we have no

14

quarrel with the objective of harmonization fitting within

15

the "promote the progress of science" understanding,

16

subject to constitutional limitations.

17

If France adopted a rule that said you couldn't

18

grant copyrights to hate speech, we could not harmonize

19

with that rule consistent with our First Amendment and

20

similarly, as Mary Beth Peters testified before Congress,

21

ours is the only Constitution that has an express

22

limitation on terms.

23

it means that we are limited in our ability to agree with

24

the Europeans as they continually expand the term in light

25

of their own vision of what copyright is about, then

That's got to mean something, and if

23 Alderson Reporting Company 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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that's the meaning of a constitutional restriction.

This Court's interpretation of "limited times"

2 3

could, of course, eviscerate that term of any meaning, but

4

under the principle of enumeration as this Court has

5

articulated it, this Court should interpret that clause in

6

a way that gives its terms effect in a simple way.

7

as a limited addition print is not a limited -- is not

8

limited if each time a customer comes in a new print is

9

printed, so, too, a limited term is not limited if each

10

time copyright holders come to Congress they can extend

11

the term.

12

QUESTION:

Just

Well, but the difference -- the

13

reason that analogy doesn't cut it for me is that the

14

limited edition print depends basically on an implied

15

understanding between the person who makes the print and

16

the person who buys it, and the understanding is, you

17

won't go beyond 100, or whatever number you write.

18

We're not engaged in a contractual analysis

19

under the Copyright Clause between the writer and the --

20

and somebody representing the public domain.

21

MR. LESSIG:

22

QUESTION:

23

MR. LESSIG:

That's right.

The analogy doesn't seem to work.

That's right.

All that I'm

24

suggesting is, here is a plain meaning of the term that

25

gives effect to the constitutional limit in a way that

24 Alderson Reporting Company 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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assures that, in fact, the limit is respected, contrary to

2

the Government's argument, which, in effect, permits

3

Congress the power perpetually to extend terms.

4

If I may reserve the remainder of my time.

5

QUESTION:

6

General Olson, we'll hear from you.

Very well, Mr. Lessig.

7

ORAL ARGUMENT OF THEODORE B. OLSON

8

ON BEHALF OF THE RESPONDENT

GENERAL OLSON:

9 10

Mr. Chief Justice, and may it

please the Court:

The questions today, especially the initial

11 12

questions, suggest one of the many insurmountable

13

obstacles to petitioners' petition in, position in this

14

case.

15

copyright protection to the authors of any books already

16

printed as well as explicitly the owners of existing

17

copyrights.

18

and in numerous private copyright bills and temporary

19

extensions of the copyright law and in repeated patent law

20

revisions, Congress extended the terms of Federal

21

copyright and patent protection of subsisting works.

22

That is that the first Congress explicitly gave

Thereafter, in 1831, 1909, 1976, and 1998,

As this Court explained 100 and some years ago

23

in its Burrows-Giles opinion, such constructions are

24

accorded very great weight and, as that Court went on to

25

say, when consistent and unchallenged for over a century

25 Alderson Reporting Company 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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are almost conclusive that consistent construction by

2

Congress of its authority under the Copyright and Patent

3

Clause now has lasted from the 105th -- from the first

4

through the 105th Congress.

5

Justices of this Court and early decisions of this Court.

6

It is consistent with what the law of England was from the

7

Statute of Anne --

QUESTION:

8 9

It has been sustained by

Yes, but take one of the early

extensions, just extending a -- an already granted patent

10

to an inventor for an extra 10 years.

11

squared with the language of the provision?

12

Congress did it, but maybe it acted improperly when it did

13

it.

14

GENERAL OLSON:

15

QUESTION:

16

GENERAL OLSON:

How can that be

Maybe

Well, the Congress --

And that's our question, really.

Well, that -- it seems to me

17

that there may be -- this is -- the clause itself is a

18

very, very broad grant.

19 20 21

QUESTION:

It says the --

Do you view it as entirely a grant,

or do you think it also contains limitations?

GENERAL OLSON:

Well, I think that to the extent

22

that there may be limitations, Justice Stevens, they

23

are -- require considerable deference by this Court to the

24

judgment of Congress --

25

QUESTION:

Well, I understand that, but do

26 Alderson Reporting Company 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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you -- I'd be interested in knowing, do you think it does

2

contain limitations?

3

GENERAL OLSON:

It contains -- the clause itself

4

contains limitations, limited times, authors, exclusive

5

rights and things of that nature.

6

the petitioners expressly disclaim the assertion that

7

there are any substantive limitations in the "Promote the-

8

Progress" Clause.

9

I don't think -- and

What the Framers were saying is, we want to give

10

Congress the authority to promote the progress of useful

11

arts and sciences, and --

12

QUESTION:

How did the example we just talked

13

about, a patentee giving an extra 10 years on his -- how

14

does that promote the progress of science?

15

GENERAL OLSON:

Well, it may provide additional

16

incentives for the patentee to exploit and promote and

17

disseminate that particular work.

18

creative works like works of art, books and that sort of

19

thing, it may provide many ways --

20

QUESTION:

With respect to

I'm just concentrating on our

21

patentee, and I'm wondering how that fits into the notion

22

that there was a bargain in effect between the inventor

23

and the Government that at a certain period of time it

24

would become part of the public domain.

25

it's inconsistent with that.

It seems to me

27 Alderson Reporting Company 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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GENERAL OLSON:

It isn't inconsistent, I submit,

2

Justice Stevens, for the Congress to exercise its juris --

3

its responsibility under this broad grant of power to

4

determine that there could be many ways in which the

5

holder of an existing right may benefit the public by

6

continuing to have that right for an additional period of

7

time, the same reason that Congress -- same reasons that

8

Congress had when it created the right in the first place.

9

It's not just the right --

10 11 12

QUESTION:

No, the reason for the right in the

first place was to encourage invention.

GENERAL OLSON:

Well, but I -- we submit that

13

specifically with respect to the Copyright Clause, but I

14

think it applies to the patent portion of the clause at

15

all, it isn't just the invention, it isn't just the

16

writing of the work -- and this relates to the questions

17

that were asked of my colleague a moment ago.

18

the dissemination of the work, not necessarily --

19

QUESTION:

20

GENERAL OLSON:

21 22

It includes

Dissemination alone?

Not necessarily the

dissemination alone --

QUESTION:

Well, no, not -- don't say not

23

necessarily.

24

I'd like to know, imagine we have just dissemination.

25

I'm -- for purposes of my thinking about it,

GENERAL OLSON:

That something is already in the

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public domain.

QUESTION:

2

That's correct.

The only

3

justification for the extension, there is no other, is

4

dissemination of a work that is already in existence.

GENERAL OLSON:

5 6

out, Justice Breyer, for the very reason --

QUESTION:

7 8 9

I would not want to rule that

Well, I want to say, do you think yes

or no?

GENERAL OLSON:

Well, I think that it could very

10

well be yes, for the reason that in the 1790 statute the

11

Congress specifically was aware of -- that there were

12

State copyright laws which didn't last as long as the

13

Federal statute.

14

enacting those copyright laws, and a couple of States

15

hadn't enacted them at all.

16

QUESTION:

17

Several of the States hadn't finished

So in your opinion, in my example, if

you recall it --

18

GENERAL OLSON:

19

QUESTION:

It's --

-- your answer would be, if Congress

20

tomorrow wants to give a copyright to a publisher solely

21

for the purpose of reproducing and disseminating Ben

22

Jonson, Shakespeare, it can do it?

23

GENERAL OLSON:

24

QUESTION:

25

GENERAL OLSON:

It may --

I hate to say may --

Well --

29 Alderson Reporting Company 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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QUESTION:

2

important question.

-- because that really -- that's an

GENERAL OLSON:

3

Well, because I don't think that

4

a per -- I don't think there is a per se rule that should

5

apply here because this is a grant of Congress, to

6

Congress to exercise its judgment as to what may be

7

beneficial.

8

that come into play, or there may be other existing --

There may be other constitutional provisions

QUESTION:

9

All right, let me explain to you why

10

it's important to me.

11

statute.

12

extension, I've listed as follows, approximate numbers,

13

made up, but magnitude correct.

14

I have a list.

This is an economic

The harms that seem to be caused by it, the

The existing copyright holders who survive,

15

their copyright survives 70 years, who have already been

16

paid, on the numbers that were given, about $24 billion or

17

more, will receive an extra $6 billion.

18

is a harm.

19

That, I take it,

Their works have already been created.

Harm number 2.

The fact that people, for the 99

20

percent of the copyrights that have no commercial value

21

after 70 years, have to find the copyright holder to put

22

them in databases.

23

here, made up, at least a billion dollars, or they can't

24

find the people at all and get permission, an innumerable

25

cost, un -- valuable cost to people who want to use it.

The cost of that, on my numbers in

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Those are costs.

2 3

On the plus side I see uniformity,

dissemination, and -- now, you tell me.

GENERAL OLSON:

4

Well, I also see compliance with

5

international competitive markets and the laws that are

6

being adopted, and the incentives --

7

QUESTION:

8

GENERAL OLSON:

9

uniformity.

Uniformity.

That's uniformity.

Well, that's not just

It's providing incentive to people to publish

10

here, as opposed to publish in Europe, where longer terms

11

might be available.

12

existing works that may be necessary.

13

consistency that Congress is promoting by saying to

14

individuals, as they might have said when they enacted the

15

Copyright Clause in the first place, we will not only give

16

you 14 years, but if we change our mind tomorrow, and

17

think that a better, a longer period is necessary,

18

we're -- this is consistency, but it's also a matter of

19

fairness, and it's --

QUESTION:

20

There is an incentive to distribute

It's the

Why -- on the last point, it's --

21

I've counted that as zero.

The reason I've counted it as

22

zero is it seems to me that the added value, incentive

23

value to produce between life plus 50, or life plus 70, is

24

zero.

25

decimal points, divide by 100 for the probability of your

It's carried out, as the economists do, to three

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ever having such a work, and you get virtually zero, no

2

difference between this and a perpetual copyright.

3

GENERAL OLSON:

Well, I think that that's a very

4

good illustration of why the authority is granted to

5

Congress, because if you are an 80-year-old writer, that

6

may make a considerable difference in terms of what you

7

decide to do.

8

QUESTION:

How could it?

9

GENERAL OLSON:

It may -- because you may -- if

10

you have no incentive, if you know that this is going to

11

go into the public domain sooner rather than later, it may

12

affect your judgment with respect to --

13

QUESTION:

In -- I --

14

GENERAL OLSON:

It might also affect whether the

15

publisher -- what the publisher pays for your prospective

16

work, Justice Breyer.

17

incentive provides incentives not just for -- not just to

18

the creators, but to the disseminators, the publishers,

19

the broadcasters, the film companies.

20

QUESTION:

We -- the Copyright Clause

So you think, say, Verdi, Othello,

21

Verdi, Othello, 80 years old, the prospect of an extra 20

22

years way down the pike would have made a difference?

23

GENERAL OLSON:

Well, I think again that

24

illustrates why the authority is vested in Congress to

25

make these judgments rather than in courts to make these

32 Alderson Reporting Company 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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judgments, because we're not talking about the effect on

2

an individual author, or an individual creator.

3

Framers of the Constitution were concerned about is a

4

gross judgment with respect to what might generally

5

provide incentives to the population --

QUESTION:

6

What the

But it is hard to understand how, if

7

the overall purpose of the Copyright Clause is to

8

encourage creative work, how some retroactive extension

9

could possibly do that.

I -- one wonders what was in the

10

minds of the Congress, even if somehow they didn't violate

11

the clause.

12

principle out there that would ever kick in?

But if we affirm here, is there any limiting

GENERAL OLSON:

13

Well, that's a -- that is a

14

difficult question to say whether there is any limiting

15

principle when such a broad grant of power, authority is

16

given to Congress and has been exercised so repeatedly

17

that --

18 19 20

QUESTION:

Well, if it's a limited term, as the

Constitution says, is there indeed any limit out there?

GENERAL OLSON:

What I submit -- well, first of

21

all, even the petitioners acknowledge that, as far as

22

prospective limits are concerned, that isn't a judgment

23

that this Court is being made to ask and, in fact, the

24

petitioners acknowledge that it isn't a judgment that this

25

Court should make, so the only point that the

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petitioners --

QUESTION:

2 3

Well, if Congress says we're going to

grant this copyright indefinitely, forever --

4

GENERAL OLSON:

5

QUESTION:

6

-- that violates the limited term,

does it not?

GENERAL OLSON:

7 8

That would seem --

I acknowledge that.

And

anything that --

QUESTION:

9

In Victorian England you could buy a

10

box seat for 900 years.

11

about their culture, and God bless them, but --

12

(Laughter.)

13

QUESTION:

There was serene complacency

-- I really think this is an

14

important question and, as Justice O'Connor points out, if

15

we have to ask what's the most plausible explanation for

16

this rule, to reward existing vested interest or to

17

stimulate new works, it seems to me that it's probably the

18

former.

19

GENERAL OLSON:

20

QUESTION:

21

GENERAL OLSON:

Well --

I mean, we know that.

It is -- well, it -- let me say

22

with respond -- in response to both of those questions, an

23

unlimited time would violate the Copyright Clause.

24

Something that was the functional equivalent of an

25

unlimited time would violate the Copyright Clause, but the

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Framers specifically did not put in numbers.

They had the

2

opportunity to do that.

3

number should be put in.

4

even -- since the petitioners don't suggest that it's an

5

appropriate function of this Court, certainly in this

6

case, to pick a number, 133 years or something of that

7

nature, but it is quite clear that Congress from the

8

Statute of Anne, 1710, we have 300 years of history, of

9

Congress thinking that it continues to benefit the

Thomas Jefferson suggested that a

We submit that it would be --

10

process, not just of the productivity, of the creation of

11

the work itself, but the dissemination of it to provide --

12

QUESTION:

General Olson, you say that the

13

functional equivalent of an unlimited time would be a

14

violation, but that's precisely the argument that's being

15

made by petitioners here, that a limited time which is

16

extendable is the functionable, functional equivalent of

17

an unlimited time, a limited time that 10 years from now

18

can be extended, and then extended again, and extended

19

again.

20

time doesn't mean anything unless it means, once you have

21

established the limit for works that have been created

22

under that limit, that's the end.

23

GENERAL OLSON:

Why -- their argument is precisely that, a limited

Well, the Framers had an

24

opportunity to say immutable, unalterable, unamendable.

25

They didn't use that.

They used the phrase, limited term,

35 Alderson Reporting Company 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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which means then, meant then and means now, a certain

2

specified --

3

QUESTION:

4

GENERAL OLSON:

5

Okay, assuming --

-- number of years under the

statute.

QUESTION:

6

With the exception of a limitation

7

which illustrates the distinction between forever on the

8

one hand and a definite number on the other, is there any

9

limitation in the clause?

Does the promotion, does the

10

preambular recitation of promotion as such place a limit

11

on it?

GENERAL OLSON:

12

I submit, Justice Souter, that

13

there's no per se limitation, that if there is, as Justice

14

Scalia suggested, for -- if it is true that Congress,

15

having specified 14 years or 28 years, decides that

16

doesn't work very well because of the economies of other

17

countries, the parade of constraints on artists in other

18

countries, the reasons that we want things to be preserved

19

or distributed, it should be 2 more years, or 5 more years

20

later --

21

QUESTION:

Yes, but that argument would apply to

22

new copyrights, but to extension of already existing

23

copyrights your argument doesn't apply.

24 25

GENERAL OLSON:

It does apply, Justice Stevens,

because --

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QUESTION:

The work has already been created.

2

GENERAL OLSON:

The work has already been

3

created, but the artists that are creating works day in

4

and day out take into consideration the fact that Congress

5

has decided, there's an ease of administration --

QUESTION:

6

But for them, they get the benefit of

7

the longer term if you don't apply it to an existing

8

copyright.

9

of changes in the economy to encourage works, you grant 70

I mean, if you say you need 70 years because

10

for the future, but why does that, making that apply to

11

somebody who created his work 20 years ago and has already

12

provided what he, the quid pro quo, why do you need it for

13

him?

14

GENERAL OLSON:

15

not just talking about the author.

16

about --

17

QUESTION:

We're not just -- because we're

If we -- we're talking

The Constitution refers to the

18

authors and the inventors, doesn't it?

19

the prime actors in this scene, aren't they?

20

GENERAL OLSON:

They're certainly

Yes, but all of the history of

21

the development of these clauses suggests that -- and this

22

Court has indicated in its decisions with respect to

23

copyright, that the Framers were concerned and the

24

Congress is legitimately concerned not just in providing

25

the spark of creativity, but to make sure that that's

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distributed widely and available, and there may be many

2

reasons why -- we're -- we --

3

QUESTION:

And that it gets into the public

4

domain at the expiration of the term.

5

important part of the bargain.

GENERAL OLSON:

6

That was an

Yes, and what -- but the

7

definition of the term was a responsibility vested in

8

Congress, because it has the power -- the legislative

9

history of the 1998 act itself suggests what was going on

10

here and suggests why the Framers gave this authority to

11

Congress.

12

testimony by the folks that represent the same position as

13

petitioners here as to why this shouldn't be done, why it

14

should be done.

There were numerous hearings, there were

15

Congress weighed -- as this Court, the phrase

16

that this Court used, I think it was in the Feist case,

17

the delicate balance that was so difficult for Congress

18

to --

19

QUESTION:

How --

20

QUESTION:

Okay, but you --

21

QUESTION:

-- what weighs in that balance,

22

because to go back for one second, in practical, economic

23

terms I gather the difference between a copyright that

24

lasts for 100 years, lasts for 1,000 years, lasts forever,

25

is probably something less than 1,000 -- on $1,000 a

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penny.

2

less than that, frankly.

3

person whose decision to write would be governed by such a

4

thing, I cannot imagine a European who would come to

5

America to copyright his work for such a reason.

6

I wonder why that European wouldn't come anyway, even if

7

the term were 10 years, because if he doesn't come, he's

8

not going to get protection.

9 10 11 12

I mean, it's a penny on 1,000, or probably a lot

GENERAL OLSON: QUESTION:

So I can not only not imagine a

Indeed,

Well, the --

I mean, who are these people that are

going to be moved by that incentive?

GENERAL OLSON:

The -- as we described in our

13

brief, in pages 34 through 36, I believe it is in our

14

brief, that the concerns about the limitation on

15

exploitation and the limitation of a copyright period in

16

Europe is based upon the country of origin of the work and

17

the shortest time available.

18

differences, and we describe that, but that illustrates,

19

Justice Breyer, the difference between 1 cents and 10

20

cents and $100 with respect to this particular author

21

who's this particular age, or a particular author like

22

Melville, whose works weren't -- weren't -- didn't -- or

23

Schubert, whose works weren't properly appreciated or

24

exploitable until many years after their death.

25

So that there may be

All of these variations are quintessentially

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legislative judgments.

2

Framers to have eschewed deciding 14 years was a

3

constitutional limitation, and for this Court to say 99

4

years is, and again, even the petitioners aren't asking

5

the Court to make that judgment.

6

saying that there shall be a per se rule that the word

7

"limited times," means unchangeable times.

8 9

QUESTION: acknowledge.

It would be very difficult for the

The petitioners are only

But there has to be a limit, as you

Perpetual copyright is not permitted.

Who

10

is the judge of -- within that line?

11

when it becomes unlimited?

12

judicial review and, if there is, what standard would this

13

Court apply to determine whether something short of

14

perpetual is still unlimited?

15

GENERAL OLSON:

Who is the judge of

Is there, in other words,

Well, the issue before this

16

Court, I hasten to say, as I said before, is only whether,

17

once the Congress makes that judgment, it can ever change

18

it retrospectively.

19

whether, in the future, a certain length of time would be

20

appropriate.

21

Ginsburg, I submit, is found in the Necessary and Proper

22

Clause, and this Court's interpretation of the Necessary

23

and Proper Clause as to the extent that this Court would

24

find or not find that the judgment made by Congress with

25

respect to the implementation of this very broad power is

The issue before this Court is not

That -- but the answer to that, Justice

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convenient or useful in terms of the achievement of the

2

goals.

3

QUESTION:

Okay, and is your argument that we

4

should so find and hold against their retrospective

5

argument, because there is some, at least plausible basis

6

to say that there can be a causal connection between the

7

retrospective extension and some benefit that can be

8

traced to those particular works through the retrospective

9

extension, like dissemination?

10 11 12

GENERAL OLSON:

Is that your argument?

That is among our arguments,

Justice Souter.

QUESTION:

Is it also your argument that even if

13

you cannot trace that kind, or at least plausibly argue

14

that there could be that kind of a causal benefit, that it

15

would still be constitutional, because you should judge

16

the extension simply as contributing to a general system,

17

one feature of which is that from time to time there may

18

be retrospective extensions, and so long as that general

19

system induces the creation of works, or the dissemination

20

of works, or the preservation of works, so long as the

21

general system works, there is no review, no limitation on

22

the tinkering that can be done, even retrospectively?

23

that also your argument?

24

GENERAL OLSON:

25

Is

I think that's a fair statement

of an argument that we have made and articulated in the

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brief --

2

QUESTION:

Okay.

3

GENERAL OLSON:

-- that unless there is a -- the

4

Court is -- because the circumstances change, that we are

5

living in an era now where piracy is a significant

6

problem, there's question of administrative ease, of

7

administering a system where copyrights may be different

8

for one set of authors, or different for another set of

9

authors, there's changes that are taking place

10

internationally, so that what we're saying is that not

11

only could this Court conceive of reasons why Congress

12

thought it was accomplishing the objectives of this

13

clause, but that there are numerous objectives that are

14

entirely legitimate in --

15

QUESTION:

Do you also argue that the Necessary

16

and Proper Clause alone will justify the retroactive

17

extension simply as a matter of equity?

18

GENERAL OLSON:

19

QUESTION:

Yes.

That is, that the Copyright Clause

20

justifies the extension for works not yet created, but it

21

would be enormously inequitable to have other authors who

22

put in the same amount of work get a lesser protection, so

23

the Necessary and Proper Clause now allows you to do the

24

retrospective?

25

GENERAL OLSON:

Yes, Justice Scalia, and the

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examples that are --

QUESTION:

2

Can I ask you, why is it enormously

3

inequitable if they get exactly what they were entitled to

4

at the time they made the work?

5

GENERAL OLSON:

6

QUESTION:

The implicit promise that --

I mean, they have some right to

7

expect that they will be -- you know, an additional grant,

8

later on?

GENERAL OLSON:

9

I think that's not an

10

unreasonable expectation at all, Justice Stevens, because

11

that was the premise of the --

QUESTION:

12

That is the way it's always been

13

done.

There hasn't been any copyright extension that

14

hasn't applied to subsisting work.

15

GENERAL OLSON:

16

QUESTION:

That's --

But there was one -- Justice Breyer

17

brought up Ben Jonson, so -- this case doesn't involve

18

works that are already in the public domain.

19

GENERAL OLSON:

That is correct.

20

QUESTION:

21

GENERAL OLSON:

22

QUESTION:

So --

23

QUESTION:

But why wouldn't it?

24

QUESTION:

Why?

25

QUESTION:

Why wouldn't it?

This is subsisting copyrights.

That is correct.

Why not?

If the equity

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argument under the Necessary and Proper Clause justifies

2

extension of the copyright for those whose copyright will

3

expire tomorrow if it's not extended, in order to put them

4

on parity with those getting copyrights for new works, why

5

doesn't it apply to the copyright, the holder of the

6

copyright that expired yesterday?

7

GENERAL OLSON:

You could arguably -- you could

8

conceivably make that argument, Justice Souter, but there

9

is a bright line there.

Something that has already gone

10

into the public domain, which other individuals or

11

companies or entities may then have acquired an interest

12

in, or rights to, or be involved in disseminating --

13

QUESTION:

14

GENERAL OLSON:

15

QUESTION:

16

And if you don't --

This is a rational --

If you don't draw the line there,

then Ben Jonson certainly gets recopyrighted.

17

QUESTION:

Well, the difficulty --

18

QUESTION:

If we're just looking for a bright

19

line, the line that they suggest between unexpired patents

20

and copyrights and brand new ones is also just as bright.

21 22 23 24 25

GENERAL OLSON:

Oh, I concede that it's a bright

line, but it's a bright line that would have --

QUESTION:

Except Congress chose this one and

didn't choose the other one. GENERAL OLSON:

That's --

Congress --

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QUESTION:

Basically you're saying the

2

presumption ought to be in the congressional judgment

3

about how to draw the line as well as in how long a line

4

to draw.

GENERAL OLSON:

5

I agree, and this Court has --

6

we're not just talking about the judgment of the Congress

7

of the -- the 105th Congress in 1998.

8

Statute of Anne was written.

9

copyright laws were written when this country became a

10

Nation.

11

number of --

12

This is the way the

This is the way the State

This is the way the 1790 copyright statute, the

QUESTION:

Well, of course, the original statute

13

was replacing a bunch of State statutes or State rules,

14

partly common law, partly statutory, that -- they had kind

15

of a mixed up legal situation, and there was an interest

16

in having one uniform rule for the first time around.

17

GENERAL OLSON:

Well, there was an interest in

18

having a uniform rule, and that's precisely why the

19

Framers created the Copyright Clause in the Constitution,

20

but there was copyright protection in some States, there

21

wasn't copyright protection in other States, and what we

22

know from the decision of this Court in the Wheaton

23

decision is that there was not a common law copyright in

24

existence.

25

This Court explicitly held that.

Now, the petitioners make this quid pro quo

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argument that somehow implicitly the initial 1790

2

copyright statute was saying to people, you get a

3

copyright if you exchange whatever existing rights you

4

have.

5

language, and it's a relatively late-discovered argument,

6

because it sees its full --

7

That simply does not make any sense.

QUESTION:

There is no

I want you to finish that, but I want

8

you to go back to the -- I have one question on the equity

9

principle.

10 11

Are you -- I want you to finish.

GENERAL OLSON:

I wasn't finished, but I'm happy

to come back.

12

QUESTION:

Go ahead.

13

GENERAL OLSON:

No, no, you finish first.

Well, I was going to say there's

14

no language whatsoever of preemption, abandonment,

15

abrogation, or exchange in the 1790 copyright, but

16

compare -- Copyright Act.

17

Patent Act under the same clause, where there is that

18

exchange there.

19

But compare that to the 1793

The other thing, as this Court has said, there

20

is no implied abrogation of common law rights which would

21

be a doctrine which would be inconsistent with what the

22

petitioner is arguing.

23

QUESTION:

Now --

Why -- I mean, I think you have a

24

point on this equity principle.

25

review there?

I wonder, is there any

That is, suppose you have a statute, as

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this one arguably is, where 99.9 percent, many billions of

2

dollars of benefits, are going to the existing holders of

3

copyright on grounds of equity, and the effect of the

4

statute in eliciting new works is near zero.

5

would seem -- where this equity idea is the camel and the

6

production idea is the gnat, and is there any -- can we

7

say something like that, or does Congress have total

8

leeway in respect to --

9 10 11 12

GENERAL OLSON: QUESTION:

I mean, that

Well, it --

-- who they want to give the money

to, basically?

GENERAL OLSON:

Justice Breyer, it's conceivable

13

that the Court might do that if that situation was

14

present, but it's not remotely the situation here.

15

have the adoption of copyright terms which are consistent,

16

generally speaking, with copyright terms which exist in

17

the European Union, our principal competitor, and in

18

connection with international treaties.

19

We

We have a copyright term that's consistent with

20

the concept of the creator plus the creator's first

21

generation heirs.

22

which supersedes the earlier copyright provisions that

23

were added to the period between creation and publication,

24

so that the limited number of years in the first, the 1790

25

and the 1831 statute were the number of years plus the

We have a copyright term, remember,

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relatively unlimited period of time between creation and

2

publication, so we don't have anything remotely like that

3

in this situation.

4

We have a process which, as you suggested, or

5

one of the questions suggested, is -- may not have been

6

the policy that you as a Member of Congress would have

7

supported.

8

balance that this Court has referred to, in another way,

9

but that is something that Congress, through its ability

You might have made the balance, that delicate

10

to gather facts and make balances, is quintessentially

11

capable of doing, and that is where the Framers vested

12

the responsibility, and what this statute does is to

13

favor, if at all, the creator with respect to the

14

utilization of these rights, as opposed to the person who

15

wishes to copy the creator.

16

distinction for Congress to make.

That's an entirely rational

17

Thank you.

18

QUESTION:

19

Mr. Lessig, you have 3 minutes remaining.

Thank you, General Olson.

20

REBUTTAL ARGUMENT OF LAWRENCE LESSIG

21

ON BEHALF OF THE PETITIONERS

MR. LESSIG:

22

General Olson has been perfectly

23

clear in setting out the structure of the Government's

24

argument.

25

Congress's power under the Copyright Clause.

It is that there is no effective limit on

Now, were

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this the first time this Court had considered Congress's

2

copyright authority, that might be a plausible argument,

3

but the very first time this Court ever struck down a law

4

of Congress as exceeding Article I, section 8 power was in

5

the context of the Copyright Clause.

6

We have 125 years of history of this Court

7

making sure that the limits, both express and implied, in

8

the Copyright Clause, have some meaning.

9

opinion very clearly sets out the implied limits, a per se

10

limit for originality, for the reasons Justice Breyer was

11

trying to get me to say.

12

out very clear limits on the context of the ability to

13

extend works in the public domain.

14

sense under the reasoning the Government has offered.

15

Government's reasoning would make all of those opinions

16

irrelevant and wrong.

17

The Feist

The Harper as well as Graham set

Those limits make no

The

Now, we offer a simple way to make this clear,

18

express limit make sense, and that is precisely the

19

understanding we suggest that existed in 1790.

20

precedents that existed in 1790

21

setting a term, and then when parliament was asked in

22

1735, '37, and '39 to extend it, they rejected it, and as

23

amicus historians said, they rejected it because, as a

24

pamphleteer described it, that would be effectively a

25

perpetual term.

The only

were precedents of

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Now, this delicate balance that the Government

2

invokes, Justice Breyer, let me give you the numbers.

3

delicate balance is that, under the most reasonable

4

assumptions of copyright royalty income and under our

5

interest rate of 7 percent, as the amicus economists note

6

at page 6, note 6 of their brief, the current term gives

7

authors 99.8 percent of the value of a perpetual term.

8 9

The

Now, that might be a delicate balance, that they

give the author 99.8 percent and the public .2 percent,

10

but in my mind, that's delicate in a very different sense

11

of that term.

12

Thank you very much.

13

CHIEF JUSTICE REHNQUIST:

14

The case is submitted.

15

(Whereupon, at 11:01 a.m., the case in the

16

Thank you, Mr. Lessig.

above-entitled matter was submitted.)

17 18 19 20 21 22 23 24 25

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